Criminal Code

Marginal note:Definitions

• 25.1 (1) The following definitions apply in this section and sections 25.2 to 25.4.

  competent authority

  autorité compétente

  competent authority means, with respect to a public officer or a senior official,

  • (a) in the case of a member of the Royal Canadian Mounted Police, the Minister of Public Safety and Emergency Preparedness, personally;

  • (b) in the case of a member of a police service constituted under the laws of a province, the Minister responsible for policing in the province, personally; and

  • (c) in the case of any other public officer or senior official, the Minister who has responsibility for the Act of Parliament that the officer or official has the power to enforce, personally. (autorité compétente)

  public officer

  fonctionnaire public

  public officer means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament. (fonctionnaire public)

  senior official

  fonctionnaire supérieur

  senior official means a senior official who is responsible for law enforcement and who is designated under subsection (5). (fonctionnaire supérieur)

• Marginal note:Principle

  (2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.

• Marginal note:Designation of public officers

  (3) A competent authority may designate public officers for the purposes of this section and sections 25.2 to 25.4.

• Marginal note:Condition — civilian oversight

  (3.1) A competent authority referred to in paragraph (a) or (b) of the definition of that term in subsection (1) may not designate any public officer under subsection (3) unless there is a public authority composed of persons who are not peace officers that may review the public officer’s conduct.

• Marginal note:Declaration as evidence

  (3.2) The Governor in Council or the lieutenant governor in council of a province, as the case may be, may designate a person or body as a public authority for the purposes of subsection (3.1), and that designation is conclusive evidence that the person or body is a public authority described in that subsection.

• Marginal note:Considerations

  (4) The competent authority shall make designations under subsection (3) on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.

• Marginal note:Designation of senior officials

  (5) A competent authority may designate senior officials for the purposes of this section and sections 25.2 to 25.4.

• Marginal note:Emergency designation

  (6) A senior official may designate a public officer for the purposes of this section and sections 25.2 to 25.4 for a period of not more than 48 hours if the senior official is of the opinion that

  • (a) by reason of exigent circumstances, it is not feasible for the competent authority to designate a public officer under subsection (3); and

  • (b) in the circumstances of the case, the public officer would be justified in committing an act or omission that would otherwise constitute an offence.

  The senior official shall without delay notify the competent authority of the designation.

• Marginal note:Conditions

  (7) A designation under subsection (3) or (6) may be made subject to conditions, including conditions limiting

  • (a) the duration of the designation;

  • (b) the nature of the conduct in the investigation of which a public officer may be justified in committing, or directing another person to commit, acts or omissions that would otherwise constitute an offence; and

  • (c) the acts or omissions that would otherwise constitute an offence and that a public officer may be justified in committing or directing another person to commit.

• Marginal note:Justification for acts or omissions

  (8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) — that would otherwise constitute an offence if the public officer

  • (a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity;

  • (b) is designated under subsection (3) or (6); and

  • (c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.

• Marginal note:Requirements for certain acts

  (9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she

  • (a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties; or

  • (b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to

    • (i) preserve the life or safety of any person,

    • (ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or

    • (iii) prevent the imminent loss or destruction of evidence of an indictable offence.

• Marginal note:Person acting at direction of public officer

  (10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if

  • (a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and

  • (b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer’s law enforcement duties.

• Marginal note:Limitation

  (11) Nothing in this section justifies

  • (a) the intentional or criminally negligent causing of death or bodily harm to another person;

  • (b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or

  • (c) conduct that would violate the sexual integrity of an individual.

• Marginal note:Protection, defences and immunities unaffected

  (12) Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.

• Marginal note:Compliance with requirements

  (13) Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.

• Marginal note:Exception: offences under Controlled Drugs and Substances Act

  (14) Nothing in this section justifies a public officer or a person acting at his or her direction in committing an act or omission — or a public officer in directing the commission of an act or omission — that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances Act or of the regulations made under it.